Toussaint v. Palmetto Health et al

Filing 59

ORDER adopting 55 Report and Recommendation and denying Defendant's 41 Motion for Summary Judgment as to Plaintiff's USERRA claim granting 41 Motion for Summary Judgment as to Plaintiff's defamation claim. Signed by Honorable Mary Geiger Lewis on 5/10/2017. (mwal)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
COLUMBIA DIVISION
CHARLES PHILIP TOUSSAINT, M.D.,
Plaintiff,
vs.
PALMETTO HEALTH and GRETA S.
HARPER,
Defendants.

'
'
'
'
'
'
'
'

CIVIL ACTION NO. 3:15-02778-MGL

ORDER ADOPTING THE REPORT AND RECOMMENDATION
AND GRANTING IN PART AND DENYING IN PART
DEFENDANTS= MOTION FOR SUMMARY JUDGMENT
Plaintiff Charles Philip Toussaint, M.D. (Plaintiff), filed this case as an employment
discrimination action. The parties are represented by excellent counsel. The matter is before the
Court for review of the Report and Recommendation (Report) of the United States Magistrate
Judge suggesting Defendant Palmetto Health (Palmetto Health) and Defendant Greta S. Harper’s
motion for summary judgment be denied as to Plaintiff’s claim for violation of the Uniformed
Services Employment and Reemployment Rights Act of 1994, 38 U.S.C. § 4311 (USERRA claim),
and granted as to Plaintiff’s defamation claim. The Report was made in accordance with 28
U.S.C. ' 636 and Local Civil Rule 73.02 for the District of South Carolina.
The Magistrate Judge makes only a recommendation to this Court. The recommendation
has no presumptive weight. The responsibility to make a final determination remains with the
Court. Mathews v. Weber, 423 U.S. 261, 270 (1976). The Court is charged with making a de
1

novo determination of those portions of the Report to which specific objection is made, and the
Court may accept, reject, or modify, in whole or in part, the recommendation of the Magistrate
Judge or recommit the matter with instructions. 28 U.S.C. ' 636(b)(1).
The Court need not conduct a de novo review, however, “when a party makes general and
conclusory objections that do not direct the [C]ourt to a specific error in the [Magistrate Judge’s]
proposed findings and recommendations.” Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir. 1982);
see Fed. R. Civ. P. 72(b). Thus, the Court will address each specific objection to the Report in
turn. As provided above, however, the Court need not—and will not—address any of Plaintiff’s
arguments that fail to point the Court to alleged specific errors the Magistrate Judge made in the
Report.
The Magistrate Judge filed the Report on April 3, 2017, Plaintiff filed his objections to the
Report on April 17, 2017, and Defendants filed their reply on May 1, 2017. The Court has
reviewed Plaintiff’s objections, but holds them to be without merit. Therefore, it will enter
judgment accordingly.
At the outset, the Court notes neither Plaintiff nor Defendants lodged an objection to the
Magistrate Judge’s recommendation Defendants’ motion for summary judgment be denied as to
Plaintiff’s USERRA claim. “[I]n the absence of a timely filed objection, a district court need not
conduct a de novo review, but instead must ‘only satisfy itself that there is no clear error on the
face of the record in order to accept the recommendation.’” Diamond v. Colonial Life & Acc. Ins.
Co., 416 F.3d 310, 315 (4th Cir. 2005) (quoting Fed. R. Civ. P. 72 advisory committee’s note).
Moreover, a failure to object waives appellate review. Wright v. Collins, 766 F.2d 841, 845-46
(4th Cir. 1985). Thus, because the Court has “satisf[ied] itself that there is no clear error on the
2

face of the record[,]” Diamond, 416 F.3d at 315, it will adopt the portion of the Report
recommending Defendants’ motion for summary judgment be denied as to Plaintiff’s USERRA
claim.
Instead, Plaintiff first objects to the Magistrate Judge’s suggestion Defendants be granted
summary judgment on his defamation claim. Plaintiff contends the Magistrate Judge erroneously
concluded Palmetto Health’s patient communications were not reasonably capable of conveying a
defamatory meaning.

Plaintiff asserts the Magistrate Judge improperly disregarded and

misconstrued patient testimony purportedly showing certain patients reasonably inferred from
Palmetto Health’s statements Plaintiff had abandoned them. The Court is unable to agree.
Defamation “need not be accomplished in a direct manner” and a “mere insinuation is as
actionable as a positive assertion if it is false and malicious and the meaning is plain.” Tyler v.
Macks Stores of S.C., Inc., 272 S.E.2d 633, 634 (S.C. 1980). Although truth provides a complete
defense to defamation, an untrue innuendo or inference drawn from the true statement may
nonetheless give rise to liability, see Adams v. Daily Tel. Co., 356 S.E.2d 118, 122 (S.C. Ct. App.
1986), but the inference must be reasonable, Fountain v. First Reliance Bank, 730 S.E.2d 305, 310
(S.C. 2012).
Plaintiff makes no contention the letter from Palmetto Health to patients regarding
Plaintiff’s separation or Palmetto Health’s internal “talking points” memorandum were false.
Rather, Plaintiff urges these communications created the reasonable inference that Plaintiff
abandoned his patients. Citing affidavits provided by five of Plaintiff’s current patients, Plaintiff
states the inference of abandonment was reasonable, particularly in light of the fact these patients
drew this exact inference. Plaintiff is mistaken.

3

Although insinuation can serve as the basis for a defamation claim in South Carolina, that
is an exception to the general rule truth is a complete defense to defamation. See Adams, 356
S.E.2d at 122. Here, Plaintiff has admitted the truth of Palmetto Health’s patient communications.
The Court declines the invitation to expand this narrow exception to South Carolina defamation
law to situations where the parties have agreed the communications made were factually accurate.
Furthermore, Palmetto Health’s communications provide no indication Plaintiff abandoned
his patients. In communicating with patients, Palmetto Health’s statement merely informed
patients Plaintiff “will no longer practice at Palmetto Health Neurosurgery Associates.” ECF No.
41-3 at 70. In light of these facts, the Court holds, to the extent Plaintiff’s patients formed
assumptions Plaintiff had abandoned them after Palmetto Health’s communications, such
assumptions are objectively unreasonable based on the record before the Court.
Plaintiff next maintains the Magistrate Judge failed to consider all extrinsic facts and
circumstances, including the unique and special nature of the patient-physician relationship and
healthcare providers’ duty to provide full and accurate information to patients regarding a
physician’s departure from a practice. Plaintiff also avers the Magistrate Judge impermissibly
considered Palmetto Health’s knowledge of the facts at the time its staff made the allegedly
defamatory statements as opposed to the facts known to Plaintiff’s patients. Plaintiff insists
Palmetto Health had constructive knowledge of his employment with Lexington Medical Center
but refrained from communicating that information to his patients. The Court is unpersuaded.
Although Plaintiff cites to the American Medical Association Code of Medical Ethics to
imply Palmetto Health violated its ethical duties, the evidence demonstrates Palmetto Health
properly informed patients of Plaintiff’s departure. Plaintiff seeks to impose on Defendants the

4

responsibility to infer knowledge of his new employment based on rumors in the workplace and
an e-mail asking Palmetto Health to release Plaintiff’s personal belongings to an individual named
John Moore. This scant evidence is insufficient to constitute notice to Defendants of Plaintiff’s
new employment with Lexington Medical Center. As noted by the Magistrate Judge, Defendants
were arguably not even permitted to make assumptions about the status of Plaintiff’s employment
based on this e-mail and these rumors. The actions taken by Defendants were in line with their
ethical duties, avoiding speculation and informing patients of what they knew to be true and
nothing more: Plaintiff no longer worked at Palmetto Health.
In sum, the Court is convinced the Magistrate Judge considered the context of the
statements made and viewed the facts in the light most favorable to Plaintiff. The Court will
therefore overrule Plaintiff’s objections.
After a thorough review of the Report and the record in this case pursuant to the standard
set forth above, the Court overrules Plaintiff’s objections, adopts the Report, and incorporates it
herein. Therefore, it is the judgment of this Court Defendants= motion for summary judgment is
DENIED as to Plaintiff’s USERRA claim and GRANTED as to Plaintiff’s defamation claim.
IT IS SO ORDERED.
Signed this 10th day of May, 2017, in Columbia, South Carolina.
s/ Mary Geiger Lewis
MARY GEIGER LEWIS
UNITED STATES DISTRICT JUDGE

5